Written on behalf of Feigenbaum Consulting
A recent Ontario case dealt with a father’s application seeking to prohibit the mother from changing the surname of their two children following the parents’ separation.
The parents began living together in April 2010 and separated in January 2015; they were never married.
The couple had two daughters, born in 2010 and 2012. At birth, each daughter was given her father’s last name, as evidenced by their statements of live birth.
After the parents’ separation, a 2017 final court order gave full custody to the mother and access to the father on weekends and holidays. The court order also provided for child support by the father and the sharing of section 7 expenses between the parents.
Following the court order, the mother made applications to the Registrar General to change the children’s surnames from being solely the father’s last name to his last name followed by the mother’s last name. The mother served the applications as required on the father; he did not reply to her but did bring an application to the court for a prohibition on changing the names.
In part, the father argued that the mother never raised the issue of changing the children’s names with him until he received her applications to the Registrar General. He argued that his last name was the only surname used for the children in the community, and he did not see the need to change their names at this time. He felt that the mother’s intent was to “push his name out” of the children’s lives. He argued that the impact on the children of a name change would be to cause confusion for them, and that they would think badly of him and believe there was something wrong with his family.
In cross-examination, however, the father acknowledged that it may be important for children to have both parents’ names in a separation, but felt it was not necessary for his children because they had had their name since birth. He also acknowledged that he was not aware of any concerns or impact on the children at school where they have already been using both parents’ surnames.
The mother sought to be able to proceed with the applications to change the children’s names, while the father sought to prohibit her from doing so. In the alternative, the father sought an order that, if the change was permitted, the names be hyphenated to ensure that his name remained used by the children.
The court acknowledged that it does not have jurisdiction to make an order changing a child’s name. However, it does have authority to determine any aspect of the incidents of the right to custody or access; the court stated that father’s request to prohibit the mother from changing the children’s names was an incident of custody.
The court then set out the factors a court should consider in determining whether a prohibition of a name change is in a child’s best interests, which include:
- Whether the proposed name change will exclude the name of the non-custodial parent.
- The length of time a custodial parent has had sole custody of the child.
- Whether there is a continuing close relationship between the child and the non-custodial parent.
- Whether there would be any serious effect on the non-custodial parent.
- Whether either parent has displayed any malice or improper motivation.
- The age of the child and the weight to be given to the child’s wishes, in light of that age.
- The length of time the child has had its name.
- The surnames of any siblings.
The court explained that the onus is on the applicant to establish on a balance of probabilities that the prohibition of a name change is in the children’s best interests.
After reviewing the testimony of both parents, the court found that the mother did not have an improper motive in seeking to add her name to the children’s surname. Instead, the court found that she was seeking the name change for her children in good faith so that they may be identified as much as her children as those of the father. Additionally, the court did not find that adding the mother’s surname to the children’s name would cause them to experience any confusion, anxiety, or discomfort.
The court concluded:
“The changing of a child’s name is not merely administrative but rather a change of something that is an important part of a child’s identity. The test is one of best interests from the child’s perspective, as opposed to what may or may not be in the parent’s interests.
When the entirety of the circumstances are considered, the [father] has not established that the best interests of the children require a prohibition on a name change. Rather, the evidence satisfies me on a balance of probabilities that it is in the best interests of the children in the particular circumstances of this case that they share the surnames of both of their parents as proposed by [the mother].”
As a result, the court dismissed the father’s application, and the mother was free to proceed with the applications to the Registrar General to change the children’s surnames.
At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269 or toll-free at (877) 275-4792 to book a consultation.